TMI Blog2017 (7) TMI 1444X X X X Extracts X X X X X X X X Extracts X X X X ..... t out any difference in the factual aspects and consequently, we find no merit in the ground of appeal No.2 raised by the Revenue and the same is rejected. The grounds of appeal raised by the Revenue are thus, dismissed. Disallowance of interest expenditure under section 36(1)(iii) - availability of interest free funds - HELD THAT:- The issue arising in the present appeal is identical to the issue before the Tribunal in earlier years and even the advances were made in earlier years and following the same parity of reasoning, we remit this issue also back to the file of Assessing Officer to determine the availability of interest free funds and also to work out the disallowance of interest under section 36(1)(iii) of the Act, if any, in line with directions of Tribunal in earlier year. The Assessing Officer shall afford reasonable opportunity of being heard to the assessee. Accordingly, grounds of appeal No.6 to 6.3 raised by the assessee are allowed for statistical purpose. The grounds of appeal raised by the assessee are thus, partly allowed as indicated above. - ITA No. 1290/PUN/2013, ITA No. 1291/PUN/2013 - - - Dated:- 12-7-2017 - MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction with Cerebrum IT Park Ltd. had not accrued because the agreement for sale had been cancelled, no income had accrued to the assessee in this year, and hence, the assessee was justified in filing the revised return. d. The assessee was entitled to claim deduction u/s 80IA(4) in this year and the revised return was not filed because the assessee was not entitled to claim deduction u/s 80IA(4). e. The claim of bad debt made by the assessee was correct and justified in law and hence, there was no reason to reject the claim made by it. f. The assessee had complied with all the conditions for filing a valid revised return and therefore, the same ought to have been considered while determining the tax liability. 5] The learned CIT(A) erred in holding that the assessee was not entitled to claim depreciation of Rs.20,80,650/- (20.43.721+ 36,929) claimed by the assessee in respect of the assets leased to Kumar City Club Pvt. Ltd. 5.1] The learned CIT(A) erred in holding that the assessee was not eligible to claim depreciation in respect of the capital assets in the form of 'Club House including Swimming Pool' and Gymnasium leased out to Kumar City Club Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax (Appeals) may be vacated and that of the Assessing Officer be restored. 5. The learned Authorized Representative for the assessee at the outset not pressed the grounds of appeal No.1 to 4 and 5 to 5.2. He further pointed out that the issue raised vide grounds of appeal No.6 to 6.3 is against the disallowance of interest under section 36(1)(iii) of the Act, which is squarely covered by the order of Tribunal in assessee s own case in earlier years, wherein for verification, the matter has been sent back to the file of Assessing Officer. He also pointed out that both the issues raised by the Revenue in its appeal are also covered by the order of Tribunal in assessee s own case. 6. Briefly, in the facts of the case, the assessee for the year under consideration had claimed the deduction under section 80IB(10) of the Act in respect of one project at Kumar Puram. The assessee had also claimed deduction under section 80IA(4)(iii) of the Act. The Assessing Officer denied the deduction under section 80IA(4) of the Act because of violation of conditions under the said section. Since the similar disallowance made in earlier years and the assessee had not fulfilled the conditions of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee are not pressed. Hence, the same are dismissed as not pressed. The remaining issues arising in the cross appeals before us are squarely covered by the order of the Tribunal in assessee s own case in assessment years 2007-08 and 2008-09. The Tribunal in ITA Nos.1190 1191/PN/2013 and 1271 1272/PN/2013 vide order dated 12.08.2016 had decided the issue of disallowance of interest expenditure under section 36(1)(iii) of the Act vide para 9.2, wherein the matter was set-aside to the file of Assessing Officer to ascertain the financial position of assessee at the time of giving advances, that, whether it had interest free funds available at the relevant time. The relevant findings of the Tribunal i.e. vide para 9.2, read as under:- 9.2 We have heard the submissions made by the representatives of rival sides. The Commissioner of Income Tax (Appeals) has upheld the findings of Assessing Officer in disallowing the interest u/s. 36(1)(iii) of the Act on the amounts advances to various parties. The Assessing Officer has observed that the amounts were advanced to the sister concerns for non-business purpose and there is no benefit to the assessee from such advances either directly or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) of the Act, if any, in line with directions of Tribunal in earlier year. The Assessing Officer shall afford reasonable opportunity of being heard to the assessee. Accordingly, grounds of appeal No.6 to 6.3 raised by the assessee are allowed for statistical purpose. The grounds of appeal raised by the assessee are thus, partly allowed as indicated above. 11. Now, coming to the grounds of appeal raised by the Revenue, wherein the Revenue is first aggrieved by the order of CIT(A) in allowing the deduction under section 80IA(4)(iii) of the Act. The Tribunal had considered various aspects of the claim of assessee and had noted the factual aspects and had relied on earlier decision of the Pune Bench of Tribunal in M/s. Kolte Patil Developers Ltd. Vs. DCIT in ITA Nos.1411 to 1415/PN/2013, relating to assessment years 2003-04, 2005-06 2007-08 to 2009-10 and in ITA Nos.1478 to 1483/PN/2013, relating to assessment years 2004-05 to 2009-10, order dated 20.02.2015. The Tribunal in M/s. Kolte Patil Developers Ltd. Vs. DCIT (supra) noted that the disallowance was made in assessment year 2007-08 as industrial park was not complete as on 31.03.2007 as the completion certificate was obta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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